Want2beclear

Being Sued by Cavalry (Synchrony Bank) in MI

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11 hours ago, Want2beclear said:

In my Answer (under the affirmative defense portion) I state that a "true copy of the arbitration notice sent to the Plaintiff is attached as Defendant's Exhibit A"........So, when I file my Answer, I just submit it with the cover page stating Exhibit A and the Notice of Arbitration and Proposed Order that was sent? 

Yes. When a document is referred to in a pleading, a copy of the document should be attached as an exhibit to the pleading. In this case, this notice letter is a document created by you. If it was an official document it might have a seal to attest to its authenticity. You don't have a seal or an official capacity duty. Therefore, you state in your affirmative defense 1 that you've attached a true or true and correct copy (aka sworn) indicating that you haven't altered the court-filed copy in any way. It's your first exhibit, so A is the correct designation. 

11 hours ago, Want2beclear said:

Then, I need to wait a week (because I need to wait for the Plaintiff to respond to my Proposed Order and notification) to file my MTC to compel arbitration.  When I file MTC, I need to file the Affidavit with the Notice of Arbitration, Proposed Order and the signed CMRRR as Exhibit B.  (not sure why i would submit the Notice and Proposed Order as part of Exhibit B tho....??)

Yes, they get 7 days to respond to you, or you could call or email if they gave that info on the summons and complaint.

No, the notice and proposed order are still Exhibit A. Now you're including evidence of how that Exhibit A was mailed and received by the opposing party. In your affidavit, you're stating facts under penalty of perjury of what you mailed, how you mailed it, that it was received and signed for, and that you received no response before filing the motion. 

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10 hours ago, Want2beclear said:

I am stating for the record that I am sorry for the next few questions, but I am a little confused

Never worry about asking questions. It's how we all learn here. You've been reading threads from previous posters that have helped you to know what questions to ask. There's no need to rush to get anything in before the deadline--unless you have a good reason. Taking your time to get it right before filing it is the best approach. Some mistakes can be fixed; others can't. 

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On 8/1/2019 at 4:05 PM, Brotherskeeper said:

@BV80 @fisthardcheese @Harry Seaward Do you think admitting the contract is attached as an exhibit in #9 implies admitting entering into the contract? 

8.  That on or about October 30, 2012, Defendant entered into a contract with Plaintiff's assignor, Synchrony Bank/Sam's Club, for goods sold and delivered and/or services rendered on open account, Account Number(s): ************1263.

Answer:  8.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 8.

9.  That a copy of the contract is attached or, alternatively, the contract is in possession of the Defendant pursuant to MCR 2.113(F)(1)(b) (see attached exhibits).

Answer: 9.    Defendant admits Plaintiff has attached as a Complaint exhibit a copy of a contract that Plaintiff asserts is the contract that governs the subject account. Defendant denies a copy of the contract is in his possession.

 

 

I see nothing wrong with both admitting that you entered into a contract with Synchrony Bank and that the attached Synchrony Agreement is said contract.  Both of those would have to be true in order to have a valid arbitration clause used to grant arbitration anyway.  It does not, however, admit that you left the account in default, that you owe any money or that Cavalry has the right to collect on the account.

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27 minutes ago, fisthardcheese said:

I see nothing wrong with both admitting that you entered into a contract with Synchrony Bank and that the attached Synchrony Agreement is said contract.  Both of those would have to be true in order to have a valid arbitration clause used to grant arbitration anyway.  It does not, however, admit that you left the account in default, that you owe any money or that Cavalry has the right to collect on the account.

The OP would not have had to have an account in order for arbitration to be granted.  

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15 hours ago, BV80 said:

The OP would not have had to have an account in order for arbitration to be granted.  

Would they not have to have been a party to the contract containing arbitration?

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39 minutes ago, fisthardcheese said:

Would they not have to have been a party to the contract containing arbitration?

Depending on the case law in one’s state, non-signatories can force signatories to arbitrate.  The JDB would be a signatory because it claims to own the account.  

Also, think about it.  The JDB is not going to object to arbitration on the grounds that one of the parties is not a signatory.  If it claims that it is not a signatory, it has admitted it lacks standing to sue.  If it claims the defendant is not a signatory, it is admitting to suing the wrong person,

 

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4 hours ago, BV80 said:

If it claims the defendant is not a signatory, it is admitting to suing the wrong person,

I agree. However, the Michigan defendant has to be mindful of answering the complaint allegations regarding the contract. To my knowledge, we've had at least one case where the Michigan defendant denied in his answer entering into the contract with the OC then later filed his MTC. The judge denied the motion, stating she couldn't enforce a contract the defendant denied ever entering into the first place. This is why I believe it's best to use the "lacks knowledge or information sufficient..." response if a defendant plans to later file the MTC. 

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2 minutes ago, Brotherskeeper said:

I agree. However, the Michigan defendant has to be mindful of answering the complaint allegations regarding the contract. To my knowledge, we've had at least one case where the Michigan defendant denied in his answer entering into the contract with the OC then later filed his MTC. The judge denied the motion, stating she couldn't enforce a contract the defendant denied ever entering into the first place. This is why I believe it's best to use the "lacks knowledge or information sufficient..." response if a defendant plans to later file the MTC. 

I agree.  When I was sued, that’s how I responded to the allegations.   

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Attached are the Civil Answers labeled Exhibit A, the Proposed Order for the Judge, and the Notice of Arbitration.  Does this look correct?  

 

Again, I really appreciate the feedback and guidance that everyone has been giving me.  I have learned a lot already....and I know this is only the surface.

 

Civil Answer and Affirmative Defense - Private.pdf Notice of Arbitration Election with Exhibit A - Private.pdf Proposed Order MTCA - Private.pdf

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@Want2beclear Exhibit A is an exhibit that is attached to your Civil Answer and Affirmative Defenses. Prior to it becoming "Exhibit A," it is a notice letter sent CMRRR (USPS CMRRR # indicated in the body of the letter) to Plaintiff via its attorney, accompanied by a proposed order. Just to be extra careful, I would include in the notice the attorney's name from the Complaint, just under the Cavalry SPV I, LLC., above the firm's address. I also would include the attorney's name on the envelope, to make certain the attorney of record gets it. Make a photocopy of the envelope and the signed notice letter exactly as they appear before you seal the envelope. This way you will have a "true copy" of the letter as it would have been received by the attorney, plus proof of mailing, and later proof of receipt with signature. This signed receipt and USPS notice of delivery will be included in the attachment to your affidavit submitted with your MTC. 

Everything else looks good. Reminder: I am not an attorney. 

 

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I noticed I numbered the pages incorrectly in my Answers (it said total pages 5, but it was actually 6).  I made the changes, and filed the answers yesterday.  I sent the plaintiff a copy of my answers, the Notification of Arbitration, and a copy of the Proposed Judgement via registered receipt mail.  The court asked that I return the stamped receipt for proof of delivery, which they said I could drop off today after work.  Also, I took pictures of everything, like you had suggested.

So, I'll wait a week after they sign the receipt to see if they respond to my notice/judgement.  If they do not, I then file my MTC for Arbitration with my affidavit (Notification of Arbitration, Proposed Order, and Return receipt as Exhibit A). 

I'm not sure what happens after that...I would expect a hearing to see if the judge will allow arbitration?   Then, I file for arbitration with JAMS, and go from there?

 

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29 minutes ago, Want2beclear said:

So, I'll wait a week after they sign the receipt to see if they respond to my notice/judgement.  If they do not, I then file my MTC for Arbitration with my affidavit (Notification of Arbitration, Proposed Order, and Return receipt as Exhibit A). 

Please read MCR 2.119 Motion Practice rules below. If you do have to file the "contested" MTC after the rejection of the proposed order, you have to first schedule the hearing date for the motion and then "notice" the Plaintiff of the hearing date and time. Courts often have specific days motion hearings are scheduled. The court clerk will know what day and whether your judge requires her/his own marked "Judge's Copy" of the motion in addition to the one you file for the court file.

Here is the MI Supreme Court Approved general fill-in form for the Notice of Hearing and Motion. In the "Motion" section you can write, "See attached Motion, affidavit and exhibits." or something like that, then attach your separate MTC with its own court heading and motion title, or you can I suppose write in your MTC in the space provided and extend it to several pages as needed. (IANAL)

https://courts.michigan.gov/Administration/SCAO/Forms/courtforms/mc326.pdf 

Rule 2.119 Motion Practice

(A) Form of Motions.

(1) An application to the court for an order in a pending action must be by motion. Unless made during a hearing or trial, a motion must

(a) be in writing,

(b) state with particularity the grounds and authority on which it is based,

(c) state the relief or order sought, and

(d) be signed by the party or attorney as provided in MCR 1.109(D)(3) and (E).

(2) A motion or response to a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based, and must comply with the provisions of MCR 7.215(C) regarding citation of unpublished Court of Appeals opinions.

(a) Except as permitted by the court, the combined length of any motion and brief, or of a response and brief, may not exceed 20 pages double spaced, exclusive of attachments and exhibits.

(b) Except as permitted by the court or as otherwise provided in these rules, no reply briefs, additional briefs, or supplemental briefs may be filed.

(c) Quotations and footnotes may be single-spaced. At least one-inch margins must be used, and printing shall not be smaller than 12-point type.

(d) A copy of a motion or response (including brief) filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE’S COPY on the cover sheet; that notation may be handwritten.

(3) A motion and notice of the hearing on it may be combined in the same document.

(4) If a contested motion is filed after rejection of a proposed order under subrule (D), a copy of the rejected order and an affidavit establishing the rejection must be filed with the motion.

(B) Form of Affidavits.

(1) If an affidavit is filed in support of or in opposition to a motion, it must:

(a) be made on personal knowledge;

(b) state with particularity facts admissible as evidence establishing or denying the grounds stated in the motion; and

(c) show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit.

(2) Sworn or certified copies of all documents or parts of documents referred to in an affidavit must be attached to the affidavit unless the documents:

(a) have already been filed in the action;

(b) are matters of public record in the county in which the action is pending;

(c) are in the possession of the adverse party, and this fact is stated in the affidavit or the motion; or

(d) are of such nature that attaching them would be unreasonable or impracticable, and this fact and the reasons are stated in the affidavit or the motion.

(C) Time for Service and Filing of Motions and Responses.

(1) Unless a different period is set by these rules or by the court for good cause, a written motion (other than one that may be heard ex parte), notice of the hearing on the motion, and any supporting brief or affidavits must be served as follows:

(a) at least 9 days before the time set for the hearing, if served by first-class mail, or

(b) at least 7 days before the time set for the hearing, if served by delivery under MCR 2.107(C)(1) or (2) or MCR 1.109(G)(6)(a).

(2) Unless a different period is set by these rules or by the court for good cause, any response to a motion (including a brief or affidavits) required or permitted by these rules must be served as follows:

(a) at least 5 days before the hearing, if served by first-class mail, or

(b) at least 3 days before the hearing, if served by delivery under MCR 2.107(C)(1) or (2) or MCR 1.109(G)(6)(a).

(3) If the court sets a different time for serving a motion or response its authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.

(4) Unless the court sets a different time, a motion must be filed at least 7 days before the hearing, and any response to a motion required or permitted by these rules must be filed at least 3 days before the hearing.

(D) Uncontested Orders.

(1) Before filing a motion, a party may serve on the opposite party a copy of a proposed order and a request to stipulate to the court's entry of the proposed order.

(2) On receipt of a request to stipulate, a party may

(a) stipulate to the entry of the order by signing the following statement at the end of the proposed order: “I stipulate to the entry of the above order”; or

(b) waive notice and hearing on the entry of an order by signing the following statement at the end of the proposed order: “Notice and hearing on entry of the above order is waived.”

A proposed order is deemed rejected unless it is stipulated to or notice and hearing are waived within 7 days after it is served.

(3) If the parties have stipulated to the entry of a proposed order or waived notice and hearing, the court may enter the order. If the court declines to enter the order, it shall notify the moving party that a hearing on the motion is required. The matter then proceeds as a contested motion under subrule (E).

(4) The moving party must serve a copy of an order entered by the court pursuant to subrule (D)(3) on the parties entitled to notice under MCR 2.107, or notify them that the court requires the matter to be heard as a contested motion.

(5) Notwithstanding the provisions of subrule (D)(3), stipulations and orders for adjournment are governed by MCR 2.503.

(E) Contested Motions.

(1) Contested motions should be noticed for hearing at the time designated by the court for the hearing of motions. A motion will be heard on the day for which it is noticed, unless the court otherwise directs. If a motion cannot be heard on the day it is noticed, the court may schedule a new hearing date or the moving party may renotice the hearing.

(2) When a motion is based on facts not appearing of record, the court may hear the motion on affidavits presented by the parties, or may direct that the motion be heard wholly or partly on oral testimony or deposition.

(3) A court may, in its discretion, dispense with or limit oral arguments on motions, and may require the parties to file briefs in support of and in opposition to a motion.

(4) Appearance at the hearing is governed by the following:

(a) A party who, pursuant to subrule (D)(2), has previously rejected the proposed order before the court must either

(i) appear at the hearing held on the motion, or

(ii) before the hearing, file a response containing a concise statement of reasons in opposition to the motion and supporting authorities.

A party who fails to comply with this subrule is subject to assessment of costs under subrule (E)(4)(c).

(b) Unless excused by the court, the moving party must appear at a hearing on the motion. A moving party who fails to appear is subject to assessment of costs under subrule (E)(4)(c); in addition, the court may assess a penalty not to exceed $100, payable to the clerk of the court.

(c) If a party violates the provisions of subrule (E)(4)(a) or (b), the court shall assess costs against the offending party, that party's attorney, or both, equal to the expenses reasonably incurred by the opposing party in appearing at the hearing, including reasonable attorney fees, unless the circumstances make an award of expenses unjust.

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Thanks.  I think I understand what I need to do should they contest it.   Although, I'm hoping they ignore it instead of actually contesting it. 

I have prepared my MTC for Arbitration to file once the week is up.  I just need to fill in the correct date of when they actually signed for the Notice of Arbitration (I expect that to be today, Aug 9) and the date of when I'm actually submitting the MTC (I expect to file that on Aug 16, 1 week from when they sign the CMRRR).  I still need to attach a copy of the Proposed Judgement that I sent as well as a copy of the CMRRR to the Affidavit, then get it notarized.   I believe I should be good...

 

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2 hours ago, Want2beclear said:

I have prepared my MTC for Arbitration to file once the week is up.

It would be best for you to post the MTC and the other motion papers for comments/proofreading before you file them. Also, don't be suprised if you receive a pretrial statement from Plaintiff. BitsyM's thread has what she received, plus a discussion with suggestions on how to fill it out. 

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36 minutes ago, Brotherskeeper said:

It would be best for you to post the MTC and the other motion papers for comments/proofreading before you file them. Also, don't be suprised if you receive a pretrial statement from Plaintiff. BitsyM's thread has what she received, plus a discussion on with suggestions on how to fill it out. 

Here is my MTC and Affidavit.  I know I still need to add the additional items to the exhibit.  I typed in some dates, but will update them if they need to be. 

MTCA - Private.pdf AFFIDAVIT - Private.pdf

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49 minutes ago, Want2beclear said:

Also, don't be suprised if you receive a pretrial statement from Plaintiff. BitsyM's thread has what she received, plus a discussion on with suggestions on how to fill it out. 

I found the specific thread/discussion re: BityM's Pretrial Statement.  I'll work on editing it for my case.

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@Want2beclear A few tweeks to the Affidavit (IANAL): 

"3. On August 7, 2019, I sent a letter by USPS certified mail return receipt requested (CMRRR) to Plaintiff's attorney notifying Plaintiff of my intent to exercise my contractual right to elect private contractual arbitration via JAMS, as per the account agreement's Arbitration Clause. I also included a copy of the Proposed Order for Plaintiff to stipulate to or reject to. The election letter and Proposed Order were signed for on August 9, 2019. As of today, I have had no communication from Plaintiff about concurrence sought in the Proposed Order. A true and correct copy of the letter, Proposed Order, and CMRRR receipt is attached as Exhibit A."

My suggestions:

3. On August 7, 2019, I mailed a letter to Plaintiff's attorney notifying Plaintiff Cavalry SPV I, LLC. of my intent to exercise my contractual right to elect private arbitration with JAMS as administrator to resolve these disputes, as per the Arbitration Clause of the Account Agreement Plaintiff submitted as a Complaint exhibit. I also included a copy of a Proposed Order for Plaintiff to stipulate to or reject. I sent the Notice of Arbitraton Election and Proposed Order by USPS certified mail return receipt requested (CMRRR). The delivery of the Notice with Proposed Order was signed for at Plaintiff's attorney's address on August 9, 2019. A true and correct copy of the Notice of Arbitration Election letter, Proposed Order, and the CMRRR signed receipt are attached as Exhibit A. As of today, I have had no communication from Plaintiff about the concurrence sought in the Proposed Order.

 

"I declare under penalty of perjury, that the foregoing is true and correct, affidavit." 

Correction I declare under penalty of perjury that the foregoing is true and correct.

 

Your attached notice of arbitration election appears to be the old version. The correct version should appear on your letterhead as a business-type letter. I thought the "Exhibit A" marking was on a separate sheet of paper stapled to the notice letter? 

EXHIBIT A

NOTICE OF ARBITRATION ELECTION

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@Want2beclear You wrote in your MTC: 

"1. Defendant was personally served with the Summons and Complaint in the above-captioned matter on or about July 23, 2019. Plaintiff alleges it is an assignee of Defendant’s account with Synchrony Bank.  Attached as a Complaint exhibit is a “CARD AGREEMENT” that the Plaintiff asserts is the contract that governs the subject account. This Card Agreement contains a binding Arbitration provision (Plantiff’s Exhibit, pages 9-13), incorporated herein by reference."

My suggestions:

1. Defendant was personally served with the Summons and Complaint in the above-captioned matter on July 23, 2019. Plaintiff alleges, "as assignee of Synchrony Bank," that an account with "Synchrony Bank/Sam's Club" belonging to Defendant was "transferred, sold and/or assigned" to Plaintiff. Attached as a Complaint exhibit is a “SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT,” ("the Agreement"), that Plaintiff asserts is the contract that governs the subject account. "Section III: Standard Provisions" of this Agreement contains a binding Arbitration provision (Plantiff’s Complaint Exhibit, pages 2-4), incorporated herein by reference.

 

a.)  You attested in your affidavit that you were served on July 23, not "on or about" July 23. If you know for a fact it was July 23, then do not use on or about. If you aren't certain, then include "on or about July 23, 2019," in both your motion and in your affidavit. They should match. (IANAL)

b.)  You've cut and pasted language that needs to be modified to use only your specific, accurate facts and record citations. The Sam's Club agreement from Plaintiff isn't marked with a Complaint exhibit letter and doesn't indicate pages 9-13, rather it shows page numbers 2-4 in the first link you posted. Please double-check this. If there is a Complaint Exhibit A or B or C indicated, you should refer to it as Plaintiff's Complaint Exhibit A (or B or C), pages 2-4. 

c.)  I've put in quote marks the exact language used in the Complaint and in the Sam's Club agreement Plaintiff provided. 

 

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@Want2beclear (IANAL) I don't believe you're also motioning to dismiss, but motioning to compel arb and dismiss, or motioning to compel arb and stay as the alternative. MCR 2.116 applies to summary disposition motions (aka summary judgment or MSJ in other states); MCR 2.116(C)(7) is a MSJ, based on the grounds that the affirmative defense of the arb clause bars the claim, which can result in a dismissal if granted. The FAA requires a stay pending arbitration if the MTC is granted. fisthardcheese prefers a stay to a dismissal (without prejudice) be granted because a stay gives you leverage to go back to court if the plaintiff refuses to arbitrate in violation of the court order to do so. Here on this forum, it appears that most Michigan judges grant the MTC and stay the case, but some judges have dismissed, too. 

You titled this:

"DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND MOTION
TO DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION"

 

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION 

 

NOW COMES XXXXX, Defendant pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT, pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority, and states the following: 

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@Want2beclear Please proofread your cut and pasted motion to accurately quote the Sam's Club agreement. Understand that the examples of documents that other posters submit are only a starting point for you to modify to your specific case. You do your credibilty real damage if you submit obviously incorrect quotations, incorrect page citations, incorrect terminology, etc. BTW--once you indicate that Synchrony Sam's Club is to be referred to as ("the Agreement"), then you use the Agreement to mean the Synchrony Sam's Club Agreement. You don't then start using the "Card" Agreement. It's also the Agreement's Arbitration clause or provision or section. 

The 2 linked to copies of the Sam's Club agreement state the following:

"RESOLVING A DISPUTE WITH ARBITRATION
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.
     • What claims are subject to arbitration
      1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Sam’s Club, if it relates to your account, except as noted below.

      2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

      3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide."

 

Your MTC incorrectly quotes the Agreement as stating:

"5. The parties are bound by the Card Agreement. The Arbitration Agreement states among other things:
     a. Either you or we may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between you and us (called “Claims”)."

[Correct quote: "1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Sam’s Club, if it relates to your account, except as noted below."]

Where in the Sam's Club Agreement is this language?:

     b. All claims relating to your account, a prior related account, or our relationship are subject to arbitration, including Claims regarding the application, enforceability, or interpretation of this Agreement and this arbitration provision.

     c. All Claims are subject to arbitration, no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; and Claims made independently or with other claims.

     d. We and anyone to whom we assign your debt will not initiate an arbitration proceeding to collect a debt from you unless you assert a Claim against us or our assignee. We and any assignee may seek arbitration on an individual basis of any Claim asserted by you, whether in arbitration or any proceeding, including in a proceeding to collect a debt. You may seek arbitration on an individual basis of any Claim asserted against you, including in a proceeding to collect a debt.

e. Claims arising in the past, present, or future, including Claims arising before the opening of your account, are subject to arbitration. 

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@Want2beclear You've got a few mistakes in ¶ 7:

"7. The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Burns v. Olde Discount Corp., 212 Mich App 576, 580, 538 N.W.2d 686 (1995). State courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act. Kauffman v Chicago Corp, 187 Mich App 284, 286; 466 NW2d 726 (1991). To ascertain the arbitrability of an issue, a court must consider whether there is an arbitration provision in the parties' contract, whether the disputed issue is arguably within the arbitration clause, and whether the dispute is expressly exempt from arbitration by the terms of the contract. Burns, supra, at 580. Any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Id. In the present case, all three of the requisites to arbitration are established. There is a written arbitration clause that is part of a valid written contract. The claims at issue fall under the scope of the arbitration clause. Defendant, at the first opportunity, has sought to compel arbitration as permitted in the Agreement's "How Arbitration Works" section. (Plaintiff’s Exhibit, pp 10-11).[Correction: . . . as permitted in the Agreement's "How to start an arbitration, and the arbitration process" section. (Pl.'s Comp. Ex., pg. 3).]

 

Here's the language from the Sam's Club Agreements, page 3, you linked to in your posts:

"• How to start an arbitration, and the arbitration process
 1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.

 2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding. . . ."

 

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Way too many mistakes on my part.  I will re-read and make the necessary changes, then re-upload.  I tried taking documents from others and making changes BEFORE completing the Answer document. Obviously, I need to slow it down a bit and concentrate on the documents that I'm actually filing (instead of trying to prepare everything at once).

Thanks for all of your suggestions, and patience.

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On 8/10/2019 at 4:33 PM, Brotherskeeper said:

b.)  You've cut and pasted language that needs to be modified to use only your specific, accurate facts and record citations. The Sam's Club agreement from Plaintiff isn't marked with a Complaint exhibit letter and doesn't indicate pages 9-13, rather it shows page numbers 2-4 in the first link you posted. Please double-check this. If there is a Complaint Exhibit A or B or C indicated, you should refer to it as Plaintiff's Complaint Exhibit A (or B or C), pages 2-4. 

In their Summons on page 3 in parenthesis under Count #14, it simply states See attached Exhibits.  They are not actually labeled anywhere as Exhibit A, B, etc. 

So, should I refer to it as "Plaintiff's Complaint Exhibit, pages 3-6 (which is the beginning and ending of the Sam's Club agreement they attached)?

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On 8/5/2019 at 3:36 PM, Brotherskeeper said:

Make a photocopy of the envelope and the signed notice letter exactly as they appear before you seal the envelope. This way you will have a "true copy" of the letter as it would have been received by the attorney, plus proof of mailing, and later proof of receipt with signature.

I made a mistake and sent them an original...I had to copies that I had signed as a backup.  Do you have any suggestions for my major mistake?  The letters were identical, but the signatures are not the same....both mine, but not identical, obviously.

(This is because I need to slow down and pay better attention).  

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39 minutes ago, Want2beclear said:

So, should I refer to it as "Plaintiff's Complaint Exhibit, pages 3-6 (which is the beginning and ending of the Sam's Club agreement they attached)?

Yes. Plaintiff's Complaint Exhibit, pages 3-6, or page 3. (or note whatever page the specific info is found on.)  An abreviation may be used after the first use: Pl.'s Comp. Ex., pp. 3-6, or pg. 3.

(IANAL) If you feel it is too confusing for the judge because Plaintiff failed to mark the separate docs by letter/number, you may attach their Sam's Club copy with the arbitration clause bracketed with a highlighter pen along the margin, not on top of the actual text, which I know is hard to read. You could then state, (see Pl's Comp. Ex., attached with highlighted text.) 

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